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Sunday, 2 March 2014

For at least one Shakespeare-loving Kat, the name Ariel will always be synonymous with a character in his play The Tempest. However, for the literally Great Unwashed, the word conjures up a brand of laundry detergent sold with great success by Procter & Gamble. Given the connections with sorcery and satanism that P&G has long sought to deny, the choice of the name Ariel, he (or possibly she) being a sprite or demon always seemed a little daring. Be that as it may, from Denise Verdoold and Maarten Rijks (both of Banning NV, The Netherands), comes news of a curious episode of litigation between PG and arch rival Unilever which seems to have had quite a twist in its tail. They write:

Last December, in a decision you can read here, the
Presiding Judge of the District Court The Hague in preliminary proceedings
ordered Procter & Gamble to stop selling water-soluble packages containing
laundry detergent marketed under the name Ariel 3-in-1 Pods in the Netherlands,
subject to an immediately payable penalty of € 100,000 per day with a maximum
of € 2,500,000. According to the Presiding Judge, the Ariel 3-in-1 Pods
infringed European Patent 1 361 172 (“EP 172”), of which the Dutch part was owned by
Unilever NV. Moreover, P&G was
ordered to remunerate Unilever’s legal costs amounting to € 250,000 and to
recall all infringing products still in stock of P&G’s professional
customers in the Netherlands.

What is EP 172?

EP 172, filed on 29 February 2000,
claimed priority from GB 9906175, filed on 17 March 1999. The patent concerned
the protection of a water-soluble package containing a laundry detergent for
release on dissolution of the package. According to the description, EP 172
aims to overcome at least some of the problems related to the prevalent forms
of laundry detergents such as washing powders and granules. It contained ten
product claims, nine of which were dependent, and five process claims, one for
the machine-washing of laundry and four for the production of a water soluble
package.

The grant of EP 172 was
opposed by, inter alia, P&G on
the grounds that the subject matter was not patentable under the EPC and that
the patent contained added subject matter in view of its parent application WO
00/55068. In 27 June 2012 the European Patent Office’s Opposition Division upheld
EP 172 in
amended form, amending claim 1 by deleting the words “or gel” so that the claim
was only for liquid and not for gel laundry detergents. The Division also deleted
four process claims for the production of a water-soluble package.

The Opposition
Division rejected the claim that EP 172 contained added subject matter, this
being was based on the ground that parent application WO 00/55068 did not
directly disclose the combination of all technical features of claim 1 of EP
172. All features of claim 1 had to be gathered from different sources from the
claims and description of the parent application. According to the Opposition
Division, the different features of claim 1 were disclosed by WO 00/55068 and
the skilled addressee would not be surprised by the combination of selections
to be made to arrive at claim 1, since these were not arbitrary selections. Accordingly,
sufficient basis was given in the parent application for the combination of
features of claim 1, so that the requirements of Articles 123(2) and 76(1) of
the European Patent Convention were fulfilled. P&G appealed to the
Technical Board of Appeal. The TBA is expected to deal with the appeal mid-May
2014.

According to the amended
claim 1, the water-soluble package for which protection is sought had five
characteristics:

·The
package had a body portion comprising two sheets; a body wall and a rectangular
or square base wall, both made of water soluble material.

·The body
portion was generally dome-shaped.

·Both
sheets of the body portion comprised a polyvinyl alcohol or a polyvinyl alcohol
derivative.

·The
maximum height of the body wall above the base wall was less than or equal to
the maximum width of the base wall.

·The
laundry detergent was a liquid having a certain viscosity.

The other nine product
claims sought to protect packages according to claim 1, each claiming slightly
different characteristics, such as a different viscosity or different shape of
the base wall.

Infringement

P&G disputed the
infringement based on two main grounds. First, P&G asserted that its Ariel
3-in-1 Pods did not contain a base wall and that this base wall was not
rectangular or square shaped. P&G interpreted this characteristic as if the
package under EP 172 had to be formed of a flat base on a which a dome was
placed -- unsurprisingly, since the drawings in EP 172 all showed (two
examples) packages with a flat base:

The Presiding Judge
however ruled differently and pointed out that, although all drawings showed
packages with a flat base and this pointed to the preference for a flat base,
the scope of protection of claim 1 of EP 172 — interpreted by the skilled
person in the art — also extended to
packages with a base with a somewhat convex shape (like that used in the Ariel
3-in-1 Pods). One of the reasons for this broad scope of protection was derived
from claim 2 of EP 172 which explicitly mentions a “somewhat concave or convex”
shape.

P&G also asserted
that the Ariel 3-in-1 Pods contain two additional compartments that were fitted
to the base wall but this argument was denied by the Presiding Judge:

“Unilever rightly pointed out that infringement cannot be escaped by
adding something to a feature that is present. The compartments do not diminish
the fact that the Ariel Pods have a base wall as claimed in claim 1, that also
performs the function of a base wall according to EP 172, namely that of a
seal.”

In conclusion, the
Presiding Judge ruled that P&G infringed EP 172 with the sale of its Ariel
3-in-1 Pods in the Netherlands. The Dutch decision referred to several comparable
cases between Unilever and P&G in — inter alia — the UK and France, and the first judgment in
proceedings on the merits had been expected in the Netherlands -- but there's a sequel to all of this.

The sequel

Denise and Maarten tell us that it was subsequently reported in the
Financieel Dagblad (the Dutch equivalent of the Financial Times) that Unilever had apparently withdrawn itself from the
opposition proceedings before the EPO regarding the patent in issue, and that it will not enforce the decision of the Presiding Judge of
the District Court of The Hague discussed above. The swiftly-lodged
appeal against that decision has also been withdrawn (most likely by P&G
after learning from the withdrawal of Unilever from the opposition
proceedings). Finally, Unilever is said to have informed P&G that it can
regard the decision of the District Court of the
Hague as null and void. Willem Hoyng (acting for P&G)
told the Financieel Dagblad that these latest developments mean a ‘complete victory’
for P&G. There are hints of possible proceedings to recover damages in respect of the losses incurred by P&G. Therefore, it seems that Unilever may have won the first battle but
lost the war…

8 comments:

The OP is scheduled on 26 March, which is about the earliest legal and practical date for summons issued on 15 January.

In addition to the early OP, only one day was reserved for a case involving four different parties.

Is this only a response of the board to the proprietor's request for accelerated proceedings, or are they also in a hurry to get it over with, and expect things to go roundly? Not a good sign for the proprietor, I think.

The Division also deleted four process claims [...] .

The division cannot "delete" anything under the EPC, but only take a decision on a written request (cf. Art. 113(2)).

... for the production of a water-soluble package

All features of claim 1 had to be gathered from different sources from the claims and description of the parent application.

Cobbling up claims to avoid some prior art is a sure way to make an examiner "happy"... According to the case law book:

The content of an application must not be considered to be a reservoir from which features pertaining to separate embodiments of the application could be combined in order to artificially create a particular embodiment (T 296/96 ; T 1206/01 ; T 3/06, and more recently see e.g. T 1239/08 and T 1648/11).

According to the amended claim 1, the water-soluble package for which protection is sought [included ... ] a rectangular or square base wall,

From the way the facts were presented, I find it difficult to accept that infringement occurred. How about some remedial training exercises with square pegs and round holes?

[It] was subsequently reported in the [FD] that Unilever had apparently withdrawn itself from the opposition proceedings before the EPO regarding the patent in issue,

Not quite. According to your translated Dutch decision, the proprietor did not APPEAL the decision, but are very much an (active) party to the proceedings pursuant Art. 107, second sentence.

This means that they won't be able to get anything beyond what they settled for in the opposition proceedings. But they can also see their patent revoked as requested by the three appellants.

I'm not sure on which EPC Article the case will be decided, but I get a sense of doom when reading the summons. Will the proprietor's late submissions (27 February) be delt with summarily under Rules 12 or 13 RPBA, and if they are otherwise accepted, could the deletion of the word "generally" satisfy Art. 123(3)?

Finally, Unilever is said to have informed P&G that it can regard the decision of the District Court of the Hague as null and void.

Is it within the powers of a plaintiff to suspend a court decision? In any case, in view of the probable revokation of their patent I wouldn't be too cocky.

The UK Patents Court's roster schedules hearings at the end of this year for the patent in suit and two other ones (EP1361172, EP1498473 and EP1794276). All three patents are currently undergoing appeal proceedings in opposition. EP'473 concerns a method for manufacturing the pouches, and EP'276 a bluing agent.

I am quite puzzled by the three anonymous comments posted following my initial remarks.

Regarding the first one, it seems that I am seriously getting on someone's nerves... The substance of my original comment apparently lies beyond the grasp of the anonymous party, explaining his apparent sneering at my style (or would it be of my person?).

For his benefit, here is the decrypting key: groups of letters constitute "words"; groups of words beginning with a capital and terminated by a period form "sentences"; and sentences express "ideas". Passages in italics are there to establish the context, and/or to clerly identify content cited from external sources. Bold characters are used to provide emphasis.

As to the second comment, nice thought. The IPkat blog is influential, but most certainly not to the point of whispering decisions into the ear of BoA members. For the record: I have no stake whatsoever in this case, I'm just a kibitzer.

It is finally stated in the third comment that thread contains several statements relating to ongoing legal issues which are misleading and/or false, without any substantiation. Who or what is considered to be misleading is a mystery.

This thread began by an IPkat report of a roundly successful patent infringement suit, but concluding with a rather extraordinary paragraph (the "sequel") according to which the winning party would have told the other one not to bother, without any further explanation.

My interest was piqued, and began looking into the case.

I located the Financieel Dagblaad article mentioned by Jeremy's correspondents, which would be the one that was published on 27.01.2014 (No URL: paywall registration). Its essential tenor is correctly reflected in the "sequel" section, so if there are errors, it would be in the FD reporting.

My translation: According to a Unilever spokesperson, the sudden U-turn is a consequence of the opposition proceedings initiated by P&G before the EPO.

The only event before the board which could, in my opinion, explain the new situation is the issuance of the summons six weeks earlier, on 15.01.2014. Unilever's late(st) submission of 20.02.2014 have a desperate ring (this is an opinion, not a fact). For example, at point 19, the proprietor begs the board not to follow its prior decision T31/06.

EN: Unilever has naturally the fullest confidence in the validity of its patent.

My gut feeling (not a point of law): the patent is dissolving like polyvinyl alcohol in water.

I did get one fact wrong, though, with my square peg and round hole analogy. I wasn't familiar at all with the "infringing" product. I now realize that the pouches are rather squarish, despite what was suggested from the text and figures in the initial report.

I have more questions than answers about this case. For instance, what happened to the recalled products? And if the FD report is correct, will U. also refund the attorney fees to P&G? (And what about U. taking over P&G's expenses?).

If the patent is maintained by the EPO two weeks from now, we might eventually be able to compare national decisions and see whether the robes in DE, FR, GB have a divergent opinion from the one in NL. But, as written above, I wouldn't be that it will be.

(While I write these lines I am trying to remember the brand on the box of suds sitting atop the washing machine. I can't. Talk about brand loyalty).

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